SHRI ARJUN SHABA PATYEKAR Vs. SHRI KASHINATH SHAMBA NAIK GAUNKAR (SINCE DECEASED), THROUGH HIS LEGAL HEIRS

JUDGEMENT

(1.) On 10/11/2017, the parties were put on notice that the petition would be taken up for final disposal at the admission stage. I have accordingly heard Shri Pangam, the learned Counsel for the petitioners and Shri Mulgaonkar, the learned Counsel for the contesting respondents and the petition is being disposed of finally.

(2.) The petitioners had filed a suit for declaration and injunction, claiming that the suit property corresponds to Land Registration No.42 while the contesting respondents claimed that the suit property corresponds to Land Registration No.484. The learned Trial Court dismissed the suit on 27/12/2005, which is challenged by the petitioners before the learned District Judge in F.A. No.88/2006, which is pending. During the course of the pendency of the said appeal, the petitioners filed an application (Exh.37) for amendment of plaint. In short, the petitioners' now want to introduce a plea that the suit property corresponds to old registration no.15340. This, according to the petitioners, has been necessitated on account of discovery of facts and documents subsequent to filing of the appeal. It appears that the petitioners also filed a separate application (Exh.31) purportedly under Order XLI, Rule 27 of Code of Civil Procedure (CPC, for short) for production of the said documents. The learned Trial Court, by an order dated 16/10/2015, has stipulated that the said application for production of documents shall be decided along with the main appeal. However, application Exh.37 for amendment of the plaint has been rejected by an order dated 12/08/2016, which is subject matter of challenge in this petition.

(3.) On behalf of the petitioners, reliance is placed on the decision of the Supreme Court in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (Dead) By LRs; (2008)8 SCC 511, in order to submit that the principles germane for deciding an application under Order XLI, Rule 27 of C.P.C. shall be similar while considering an application for amendment under Order VI, Rule 17 of CPC. It is submitted that once the Trial Court has deferred the consideration of the application for production of documents, the application for amendment could not have been dismissed and ought to be considered along with the application for production of documents at the stage of final hearing of the appeal.